Mai v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CAI MAI,
Petitioner,
v.
KRISTI NOEM, Secretary of the Department
of Homeland Security, et al.,
Respondents.
Case No.: 3:26-cv-01196-RBM-BLM
ORDER 	GRANTING 	PETITION
FOR WRIT OF HABEAS CORPUS
[Docs. 1, 2]
Pending before the Court are Petitioner Cai Mai’s (“Petitioner”) Petition for Writ of
Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 (Doc. 1) and Motion for a
Temporary Restraining Order (“TRO Motion”) (Doc. 2). For the reasons set forth below,
the Petition is GRANTED and the TRO Motion is DENIED AS MOOT.
I. 	BACKGROUND
A. 	Factual Background
Petitioner is a native and citizen of Vietnam who entered the United States as a
refugee on or about September 25, 1980. 	(Doc. 7-1, Declaration of Deportation Officer
Concepcion Arredondo (“Arredondo Decl.”) ¶¶ 4, 6.) On April 1, 1982, Petitioner became
a lawful permanent resident. 	(Id. ¶ 6.) 	On July 23, 1991, the “Immigration and
Nationalization Service placed Petitioner into deportation proceedings,” charging him with
being a noncitizen who “had been convicted of two or more crimes involving moral
turpitude.” (Id. ¶ 7.) On February 8, 1993, after Petitioner failed to appear for deportation
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proceedings, an immigration judge ordered that Petitioner be deported to Vietnam in
absentia. 	(Id. ¶ 8.) 	On April 8, 2015, “a motion to reopen and rescind the in absentia
deportation order was filed” with the immigration judge. (Id. ¶ 9.) The immigration judge
granted that motion. (Id.)
On June 6, 2015, the Department of Homeland Security (“DHS”) filed additional
charges of inadmissibility/deportability with the immigration judge. 	(Id. ¶ 10.) 	“The
[Form] I-261 charged that Petitioner was deportable from the United States pursuant to
[Immigration and Nationality Act] § 237(a)(2)(A)(iii) in that he [is a noncitizen] who has
been convicted of an aggravated felony at any time after admission.” 	(Id.) 	On July 20,
2015, the immigration judge ordered that Petitioner be deported to Vietnam. 	(Id. ¶ 11.)
That removal order became administratively final after both parties waived appeal. (Id.)
On August 6, 2015, Petitioner was issued a Warrant of Removal/Deportation.
(Id. ¶ 12.) On October 9, 2015, Immigration and Customs Enforcement (“ICE”) released
Petitioner from immigration detention on an order of supervision that required Petitioner
to “obey all federal, state, and local laws or ordinances, commit no crimes while on the
order of supervision, and immediately notify ICE of any new arrests or convictions.” (Id.
¶ 13.) Petitioner was thereafter committed to state prison following his conviction for first-
degree residential burglary. 	(Id. ¶ 14.) 	The offense occurred on July 26, 2021, while
Petitioner was still subject to the 2015 order of supervision. (Id.) On November 6, 2023,
after Petitioner’s release from state prison, ICE placed him on a new order of supervision
that again required Petitioner not to commit any crimes while on supervision. (Id. ¶ 15.)
On March 10, 2025, Petitioner was convicted of second-degree burglary. (Id. ¶ 16.) The
offense occurred on April 30, 2024, while Petitioner was still subject to the 2023 order of
supervision. (Id.)
On August 11, 2025, ICE lodged an immigration detainer with the California
Department of Corrections and Rehabilitation. (Id. ¶ 17.) On August 21, 2025, Petitioner
was released from state prison and transferred to ICE custody. (Id. ¶ 18.) On February 2,
2026, Vietnam issued “a limited-term travel document for Petitioner that will expire on
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August 8, 2026.” 	(Id. ¶ 23.) 	ICE Enforcement and Removal Operations currently has
physical possession over the travel document and has scheduled Petitioner for a removal
flight to Vietnam during the week of March 15, 2026. (Id.)
B. 	Procedural Background
On February 24, 2026, Petitioner filed the Petition (Doc. 1) and TRO Motion
(Doc. 2). The next day, the Court ordered Respondents to show cause why the Petition and
TRO Motion should not be granted by filing a written response. (Doc. 3.) On March 4,
2026, the Court granted the Parties’ joint motion to extend the briefing schedule. (Doc. 6.)
On March 5, 2026, Respondents filed their Response in Opposition to Petitioner’s Habeas
Petition. (Doc. 7.) The next day, Petitioner filed his Traverse in Support of Petition for a
Writ of Habeas Corpus. (Doc. 8.)
II. 	LEGAL STANDARD
A writ of habeas corpus is “available to every individual detained within the United
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2).
“The essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from illegal
custody.” 	Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” Id. § 2241(c)(3).
III. 	DISCUSSION
Petitioner argues that his detention unlawfully violates: (1) the regulations set forth
in 8 C.F.R. §§ 241.4(l) and 241.13(i); (2) the Fifth Amendment’s Due Process Clause;
(3) the Administrative Procedure Act; and (4) the Supreme Court’s decision in Zadvydas
v. Davis, 533 U.S. 678 (2001). 	(Doc. 1 at 2, 8–15.) 	Petitioner also claims ICE may not
remove him to a third country “without adequate notice and an opportunity to be heard.”
(Id. at 2, 15–18.)
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Respondents argue that (1) the Court lacks jurisdiction to hear the Petition under
8 U.S.C. § 1252(g); (2) there is a significant likelihood of removal in the reasonably
foreseeable future because ICE has secured Petitioner’s travel document and scheduled a
removal flight; (3) an alleged regulatory violation does not warrant habeas relief because
Petitioner cannot show prejudice; and (4) “third country removal is not at issue in this case
and Petitioner’s concerns in that regard are purely speculative.” (Doc. 7 at 4–10.)
A. 	Jurisdiction
As the Court has an obligation “to determine that [it has] jurisdiction before
proceeding to the merits” of any case, Lance v. Coffman, 549 U.S. 437, 439 (2007), it will
first address Respondents’ jurisdictional argument. 	For the reasons set forth below, the
Court finds that it has jurisdiction over Petitioner’s claims.
Respondents argue that the Court lacks jurisdiction to hear the Petition under
8 U.S.C. § 1252(g). (Doc. 7 at 5–6.) This statutory bar against judicial review precludes
the Court from exercising jurisdiction over the Attorney General’s decision to “commence
proceedings, adjudicate cases, or execute removal orders against any [noncitizen].”
8 U.S.C § 1252(g). 	However, the Supreme Court has narrowly interpreted § 1252(g) as
applying “only to [those] three discrete actions that the Attorney General may take.” Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis omitted)
(quoting 8 U.S.C. § 1252(g)).
Petitioner challenges violations of ICE’s duties under statutes, regulations, and the
Constitution rather than his underlying order of removal. 	He is thus enforcing his
“constitutional rights to due process in the context of the removal proceedings—not the
legitimacy of the removal proceedings or any removal order.” 	Garcia v. Noem, 803 F.
Supp. 3d 1064, 1074 (S.D. Cal. 2025) (emphasis in original); see also United States v.
Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (noting a “district court may consider a
purely legal question that does not challenge the Attorney General’s discretionary
authority, even if the answer to that legal question . . . forms the backdrop against which
the Attorney General later will exercise discretionary authority”). Accordingly, as courts
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in this District have routinely found, the Court has jurisdiction to hear Petitioner’s claims
that his detention is unlawful under 28 U.S.C. § 2241. See Sanchez, 2025 WL 2770629, at
*2; Phan v. Noem, Case No.: 2:25-cv-02422-RBM-MSB, 2025 WL 2898977, at *2–3 (S.D.
Cal. Oct. 10, 2025).
B. 	Due Process
Petitioner 	challenges 	his 	detention 	as 	unlawful 	based 	on 	ICE’s 	alleged
noncompliance with several provisions of 8 C.F.R. §§ 241.4 and 241.13. 	(Doc. 1 at 10–
11; Doc. 8 at 2–4.) Petitioner’s claims therefore implicate the Due Process Clause. The
Due Process Clause prohibits deprivations of life, liberty, and property without due process
of law. 	U.S. Const. amend. V. 	Due process rights extend to noncitizens present in the
United States, including those subject to final removal orders. Zadvydas, 533 U.S. at 693–
94. The fundamental requirements of due process are that a person be afforded notice and
opportunity to be heard “at a meaningful time and in a meaningful manner.” 	Mathews v.
Eldridge, 424 U.S. 319, 333 (1976).
The detention and release of noncitizens who are subject to a final order of removal
are governed by 8 U.S.C. § 1231. Under § 1231, “when [a noncitizen] is ordered removed,
the Attorney General shall remove the [noncitizen] from the United States within a period
of 90 days,” also known as the “removal period.” 	8 U.S.C § 1231(a)(1)(A). 	“If the
[noncitizen] does not leave or is not removed within the removal period, the [noncitizen],
pending removal, shall be subject to supervision under regulations prescribed by the
Attorney General.” § 1231(a)(3). Those regulations are 8 C.F.R. §§ 241.4 and 241.13.
1. 	Agency Regulations
In 	relevant 	part, 	release 	may 	be 	revoked 	when 	the 	Executive 	Associate
Commissioner or a district director believes revocation “is appropriate to enforce a removal
order 	or 	to 	commence 	removal 	proceedings 	against 	[a 	noncitizen].” 	8 	C.F.R.
§ 241.4(l)(2)(iii). Section 241.13 provides “special review procedures” that apply where a
noncitizen “has provided good reason to believe there is no significant likelihood of
removal to the country to which he or she was ordered removed . . . in the reasonably
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foreseeable future.” 	§ 241.13(a). 	Release may be revoked under this section if, “on
account of changed circumstances, the Service determines that there is a significant
likelihood that the [noncitizen] may be removed in the reasonably foreseeable future.”
§ 241.13(i)(2). 	Under both regulations, “[u]pon revocation,” the noncitizen “will be
notified of the reasons for revocation of his or her release or parole” and will be given “an
initial informal interview promptly after his or her return to Service custody” to “respond
to the reasons for revocation stated in the notification.” § 241.4(l)(1); § 241.13(i)(3).
The Court finds that Petitioner’s detention was procedurally deficient because he
was not provided a prompt interview to respond to the reasons for revocation of his
release.1 Petitioner was taken into ICE custody on August 21, 2025. (Arredondo Decl. ¶
18.) Petitioner has not received an informal interview in the six months since then, despite
the requirement that he be afforded one “promptly after his or her return to Service
custody.” (Doc. 1-2, Declaration of Cai Mai ¶¶ 5–6; see Doc. 7 at 8.) See Yang v. Kaiser,
No. 2:25-cv-02205-DAD-AC (HC), 2025 WL 2791778, at *5 (E.D. Cal. Aug. 20, 2025)
(finding “the failure to provide an informal interview during that lengthy [two-month]
period of time renders petitioner’s re-detention unlawful”). 	Thus, ICE violated its own
regulations by failing to provide a prompt interview.
2. 	Prejudice
Respondents argue that even if ICE violated agency regulations, Petitioner cannot
show prejudice because “any challenge Petitioner would have made during an informal
interview after his re-detention would have failed.” (Doc. 7 at 8.) The Court disagrees.
“[T]here are, for present purposes, two types of regulations: (1) those that protect
fundamental due process rights, and (2) [ ] those that do not.” United States v. Raya-Vaca,
771 F.3d 1195, 1205 (9th Cir. 2014), abrogated on other grounds by Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103 (2020). “A violation of the first type of regulation . . .
1 In light of this finding, the Court does not address the other alleged violations of §§ 241.4
and 241.13.
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implicates due process concerns even without a prejudice inquiry.” Id. (holding that where
“the regulation violation . . . constituted a denial of [the defendant’s] right to notice and an
opportunity to respond, no showing of prejudice [was] necessary to establish a due process
violation”). 	“There can be little argument that ICE’s requirement that noncitizens be
afforded an informal interview . . . derives from the fundamental constitutional guarantee
of due process.” 	Ceesay v. Kurzdofer, 781 F. Supp. 3d 137, 165 n.26 (W.D.N.Y. 2025).
Accordingly, Respondents’ violation “implicates due process concerns even without a
prejudice inquiry.” Raya-Vaca, 771 F.3d at 1205.
But even if that were not the case, Petitioner suffered sufficient prejudice. 	In the
immigration 	context, 	“violation 	of 	a 	regulation 	does 	not 	invalidate 	a 	deportation
proceeding unless the regulation serves a purpose of benefit to the [noncitizen],” i.e., the
violation “prejudiced interests of the [noncitizen] which were protected by the regulation.”
United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). 	ICE’s failure to
comply with the requirements of §§ 241.4 and 241.13 “prejudiced interests of [Petitioner]
which were protected by the regulation[s].” Id. Both regulations were intended “to provide
due process protections to [noncitizens] following the removal period as they are
considered for continued detention, release, and then possible revocation of release.”
Orellana v. Baker, Civil Action No. 25-1788-TDC, 2025 WL 2444087, at *6 (D. Md. Aug.
25, 2025). As discussed above, ICE deprived Petitioner of these due process protections.
“It 	is 	well 	established 	that 	the 	deprivation 	of 	constitutional 	rights 	unquestionably
constitutes irreparable injury.” 	Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Hernandez v. Sessions, 872
F.3d 976, 995, 1000 (9th Cir. 2017) (holding that “[u]nlawful detention” by immigration
officials constituted “irreparable harm”). 	Therefore, Petitioner was prejudiced by ICE’s
failure to comply with its own regulations.
Government agencies are required to follow their own regulations. United States ex
rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Confederated Tribes & Bands of
Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 474 (9th Cir. 1984) (“It is a well-known
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maxim that agencies must comply with their own regulations.”). Most district courts have
“determined that where ICE fails to follow its own regulations in revoking release, the
detention is unlawful and the petitioner’s release must be ordered.” Rokhfirooz v. LaRose,
804 F. Supp. 3d 1095, 1099–1100 (S.D. Cal. 2025); see K.E.O. v. Woosley, Civil Action
No. 4:25-cv-74-RGJ, 2025 WL 2553394, at *7 (W.D. Ky. Sept. 4, 2025) (noting “courts
across the country have ordered the release of individuals” in ICE custody where ICE
“violated their own regulations”). This Court reaches the same conclusion: because ICE
violated 	its 	own 	regulations 	when 	it 	revoked 	Petitioner’s 	release, 	the 	Petition 	is
GRANTED.
In light of the disposition herein, and the representation that ICE does not seek to
remove Petitioner to a third country, the Court declines to address the remaining grounds
in the Petition.
IV. 	CONCLUSION
For the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are 	ORDERED 	to immediately release Petitioner from custody,
subject to his preexisting Order of Supervision.2
2. Petitioner’s TRO Motion (Doc. 2) is DENIED AS MOOT.
IT IS SO ORDERED.
DATE: March 9, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
2 Respondents also “ask that ICE be permitted to place Petitioner on GPS monitoring to
minimize the risk of absconding.” 	(Doc. 7 at 10 n.4.) 	“The habeas statute does not
empower courts to manage ICE supervision programs.” 	Ba v. Lyons, Case No.: 3:25-cv-
2871-CAB-BJW, 2026 WL 218936, at *1 (S.D. Cal. Jan. 27, 2026) (citing 28 U.S.C. §
2241(c)(3)). If ICE wishes to place Petitioner on GPS monitoring, it may seek to do so by
following whatever legal process is necessary. That process does not involve this Court.
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